This is a bill in equity, in the nature of a bill of interpleader, brought by the executor of the last will of Eliphalet Slack, praying for directions to whom and in what proportion he shall pay the legacies given by said will to the legal heirs of Abigail Cook, the testator’s sister. The only question is, whether these legacies, on the decease of the testator, vested in the heirs, as joint tenants or as tenants in common ; for it is very clear, and indeed it is admitted by the counsel for the surviving heirs of the said Abigail Cook, that the said legacies did so vest in them and in Abigail Cook, the daughter of said Abigail, who, however, has since deceased, and before the said legacies were payable; and they claim the whole interest as survivors.
By the rule of the common law, as settled in many cases, when a legacy is given to two or more persons, and there are no words.of severance of the interests, the legatees will take as joint tenants, unless from the whole will a contrary inten*147tion is indicated; for in all cases, the intention of the testator is to govern in the construction of a will, if it can be ascertained with reasonable certainty, and is not inconsistent with the rules of law. The question, therefore, is reduced to this; whether it satisfactorily appears, from the whole will, that it was the intention of the testator to give these legacies to the heirs of his sister Abigail Cook, to take the same as tenants in common, and not as joint tenants.
It is contended by the counsel for the executor of the last will of Abigail Cook, the testator’s niece, that this intention does appear with sufficient certainty. The first and principal ground on which they rely is, that the devises and' legacies to all the heirs of the testator’s deceased brothers and sisters indicate an intention that they should take quasi heirs of their deceased parents respectively, and in the same manner as if the legacies had been given to their parents when living, and came to them, as heirs, by the statute of descents and distributions. And this seems to be maintained by the rule of construction, as laid down in 2 Jarman on Wills, 47, 48. The rule as there laid down is, that where legacies are given to the relations of a party, not only the persons to take are ascertained by the statute of distributions, but the proportions they are to take. It is objected, that this rule of construction does not apply in the present case, because the words “ legal heirs ” were used merely to designate the persons to take, and other legacies are given to legatees in express terms, naming them, and to these the legacies were given to take as tenants in common, or rather the portion of each was designated; showing that the testator was acquainted with the legal import of terms necessary to express his intention.
This objection does not strike us with much force; because where legacies were given to the particular heirs of a deceased brother or sister, not including all the heirs, the legatees could not take according to the statute of distributions ; and in all such cases, several legacies were given; which indicates a preference, in the mind of the testator, in favor of several rather than of joint legacies; and this is in conformity with the policy *148of the law; the estates of tenants in common being more ad vantageous than those of joint tenants, because it seems more just that in case of the death of one of the legatees, his share should go to his children, rather than to the surviving legatees.
It is further objected, that the rule laid down in Jarman applies only to the question, whether the parties claiming a legacy shall take per stirpes or per capita. But that question might have arisen under the present will. If any one of the three children of Abigail Cook had died during the life of the testator, leaving children, those children would have taken per stirpes; for the legacy, in such case, would not have lapsed, St. 1783, c. 24, § 8, and Rev. Sts. c. 62, § 24. The legacy did not vest until the death of the testator, and then it vested in those who were heirs of Abigail Cook at that time. But, independently of this question, we think that when a legacy is given to the legal heirs or next of kin of a person, without mentioning the proportion in which the fund is to be divided, it is a reasonable inference that the legatees should take quasi heirs or next of kin, according to the statute of distributions. Daggett v. Slack, 8 Met. 450
Another ground relied upon by the executor of Abigail Cook, the testator’s niece, relates to the seventh and twenty first articles in the will. In the seventh article, the testator, after devising two houses “ to the legal heirs ” of his late sister Grace, the wife of Abner Haskell, makes them a bequest in these words: “I also give and bequeath to the said legal heirs of my sister Grace, as aforesaid, the sum of eighteen hundred dollars in cash,” &c. The twenty first article of the will was thus: “ I give and bequeath to Samuel Haskell and John Haskell, sons of my late sister Grace, all my wearing apparel, in addition to their proportion of the devise and bequest made to the legal heirs of Grace Haskell, in the seventh article.” It is contended that the word “ proportion ” indicates the intention of the testator that these legatees should take in definite proportions, and not as joint tenants. And it seems to us that t1-is inference is not unreasonable; and if so, *149the same construction is to be given to the bequest to the heirs of Abigail Cook.
It is a well established rule of construction, as laid down in Wigram on the Interpretation of Wills, 15, that “ a testator is always presumed to use the words, in which he expresses himself, according to their strict acceptation, unless from the context of the will it appears that he has used them in a different sense; in which case the sense in which he thus appears to have used them will be the sense in which they are to be construed.” 2 Eden, 196, note. Royle v. Hamilton. 4 Ves. 437.
The counsel for the executor of Abigail Cook, the testator's niece, rely also on the residuary clause in the will, by which the residue is given to all the devisees and legatees to whom his other property was given, “ to be divided between them in the same relative proportion ” in which the testator had “ already devised and bequeathed to them.” It is argued that the residue, by this clause, is to be divided among all the devisees and legatees in definite proportions ; and as the residue is not given jointly, the prior legacies, which regulate the division of the residue, are not to be considered as joint. And we think such a construction, taken in connexion with the other clauses in the will, may reasonably be considered as the true construction of this residuary clause.
Upon the whole, therefore, we are of opinion that the heirs of Abigail Cook were entitled to their shares of the legacies to them, as tenants in common, and consequently that the executor of Abigail Cook, the testator’s niece, is entitled to a third part of these legacies.
The counsel for the surviving legatees has relied on the decision in Emerson v. Cutler, 14 Pick. 108, as inconsistent with the construction now given to this will. But there is nothing inconsistent with the rules of construction now adopted, in the rales of law laid down in that case. It has been often said, and truly said, that the construction of one will is no authority for the construction of another, unless both are in all their material provisions similar. In Emerson *150v. Cutler, the testator gave the use and improvement of one third part of his estate to his widow during her life, and at her decease he gave the same to his children. And it was held, that the children took the personal estate as joint tenants. But there was nothing in any part of the will tending to show that the testator used the words of the bequest in any other sense than according to their strict legal acceptation. The decision in that case, therefore, is not inconsistent with the principles and the rules of construction upon which we decide the present case.
The court being of opinion that the legacies to the legal heirs of Abigail Cook vested, at the testator’s decease, in her three children, Thaddeus, Abigail 2d and Vicey, severally and not jointly ,• and the said Abigail 2d having died after the death of the testator, and before the death of his widow, and left a will bequeathing her interest in said legacies, and appointing Willard Ballou her executor; the decree will be, that the plaintiff pay to Thaddeus Cook, Vicey Darling, and Willard Ballou, executor as aforesaid, each one third of the said sum of $1000 given to the legal heirs of Abigail Cook, and also pay to them, respectively, each one third of the residue and remainder of the estate of said Eliphalet Slack, as is given to the legal heirs of Abigail Cook, under the residuary clause of said Eliphalet’s will; and that the costs and expenses of this suit be paid by the plaintiff out of the estate of said Eliphalet in his hands.